Parker v. State ex rel. Powell

• Decision Date: 12 October 1892
• Citation: 132 Ind. 419,31 N.E. 1114
• Parties: Parker, Clerk, et al. v. State ex rel. Powell.
• Court: Indiana Supreme Court

132 Ind. 419

31 N.E. 1114

Parker, Clerk, et al.

v.State ex rel.

Powell.

Supreme Court of Indiana.

Oct. 12, 1892.

Appeal from circuit court, Henry county.

Action in the name of the state on relation of Simon T. Powell against Benjamin S. Parker, clerk, and other officers, to test the validity of certain acts of the legislature and restrain defendants from acting thereunder. Plaintiff had judgment, and defendants appeal. The attorney general moves to dismiss the appeal. Motion overruled.

J. H. Mellett and W. E. Niblack, for appellants. A. W. Wishard, M. E. Forkner, and Winter & Elam, for appellee.

McBRIDE, C. J.

The attorney general moves to dismiss this appeal on the ground that the suit is fictitious and collusive. All the parties to the original litigation have filed affidavits and answers resisting the motion, denying collusion, and asserting that the controversy is real. The appellee also files a motion to strike out the motion of the attorney general to dismiss, and to vacate the order permitting his appearance.

We find nothing in the record, or in the showing made by the attorney general, sufficient to authorize a dismissal. The complaint questions the validity of two acts of the legislature, seeks to enjoin the officers of the county from acting under them, and to compel them to proceed under an earlier act of the legislature, relating to the same subject. The relator shows such interest as entitles him to invoke the aid of the court. It is also apparent that he is sincere in his contention, while the affidavits of all the parties deny collusion. The action is properly brought against the officers named. The fact that such officers, the relator, and the attorneys all entertain the same opinion of the laws in question, or are otherwise agreed, is wholly immaterial. The officers named are sued as such, and not as individuals. The relator in such cases cannot be required to forego the right of appealing to the court simply because the officer against whom he must necessarily proceed agrees with him politically or otherwise. It is also not material at whose suggestion or expense the suit was instituted or carried on. Courts cannot refuse to entertain and decide controversies because the motives of the parties and promoters may be self-serving. When it is shown that the determination of a cause may seriously affect the rights of those not parties, it is proper, on a sufficient showing, to permit them to intervene, and present their side of the controversy, as the court has here done. It is also the duty of the court, when the adjudication sought will seriously affect the general public, to take such additional steps as may be necessary to a full presentation of the questions involved; hence the appearance of the attorney general, which is not intrusive, as is contended, but is by suggestion of the court. The law makes it his duty to attend to the interests of the state in all suits in which the state is interested in this court. Section 5666, Rev. St. 1881. While the state, as a body politic, is not a party to the original litigation, save as the relator is permitted to use its name, still the judgment invoked would directly affect each and all of the citizens of the state individually and collectively. While not within the letter, it is certainly so far within the spirit, of the statute that we feel justified in permitting his appearance as the representative of the people, who, in the aggregate, constitute the state. In so doing the court feels justified in assuming that his appearance will be only as an officer, acting under the...